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February 29, 2012

Do Justices Feel Shame?

Flushing, N.Y.

A conclusion to be drawn from “The Assault of the Super PACs,” by John Nichols and Robert W. McChesney [Feb. 6], is that we have lost the right to criticize military dictatorships around the world. They thrive on the power of guns; we thrive on the power of money. I wonder if the Supreme Court justices who gave us Citizens United ever feel a sense of remorse. This ruling may be the cause of an unsuitable person being elected to the presidency. Do these justices even care?

In “The Wicked Art of Caricature,” his review [Feb. 6] of the Met’s exhibition of masterpieces of that art, called “Infinite Jest,” Edward Sorel is justifiably upset. He points out that “the entire twentieth century is represented by a pitifully small group,” about a half-dozen artists, and he finds it “maddening” that the incomparable David Levine, though featured in the show’s subtitle, “Caricature and Satire From Leonardo to Levine,” is represented by only a single drawing.

But beyond “maddening,” I felt outraged when I reached the end of the exhibit and realized that I had not seen even one drawing by Sorel himself. The curators excluded him, one of the twentieth century’s all-time greatest satirist/caricaturists—an omission that boggles my mind and defies explanation (although I’d be amused to hear one from the Met). Sorel, gentleman that he is, doesn’t mention this in his review. So I do, here.

MORT GERBERG

Can Congress Feel Our Pain?

Durham, N.C.

I loved James Lardner’s “Let’s Get Congress Working” [Feb. 6]. He does a wonderful job of describing the dysfunctional nature of our most important branch of government, Congress, and of suggesting changes. Everything was on target.

But Congress has no incentive to fix itself or the election system—Lardner’s poll numbers make it clear that the citizenry understand this. Maybe Lardner’s obvious talent could be turned toward helping us understand how activists can use the constitutional amendment to forge a solution—something to give the Occupy movement a focus.

WALKER ROBERTS

Eyewitnesses: Not 20/20

Chiefland, Fla.

The misidentification of criminal defendants is every bit as bad as Patricia Williams describes [“Diary of a Mad Law Professor,” Feb. 6], and it was discredited well before Sacco and Vanzetti. In the late nineteenth century, as psychology was being recognized as a scientific discipline, a lecturer staged an incident: a person dashed in from a side door, screamed something and was followed in a few seconds by a group of people. All disappeared through another door.

The audience of students—intelligent, motivated, mostly young and possessed of good eyesight—were asked to describe what happened. Of fifty people, some thirty-five different accounts emerged of the number of participants, their age, sex, hair color, clothing—you name it. This experiment has been repeated many times, with similar results. Given that crimes rarely take place in college classrooms but in dark alleys or dimly lit bars or shops, what chance does a defendant stand if a court disallows expert testimony about perception and recall?

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Unfair and Unbalanced

Stamford, Conn.

Caleb Crain has written a review of my book How to Fix Copyright and of one by my friend Peter Jaszi. The review was titled “Fair and Balanced” [Feb. 6]. Given Crain’s Fox News tactics, this was an appropriate title. He begins with a snarky, inaccurate description of my disclaimer regarding my employer. I note that I wrote the book not as an employee but as a copyright scholar, something I have been for thirty years, twenty-five of which were before my current employment. In those twenty-five years I published around 11,000 pages of scholarly work on copyright, a rich record to review for those who aren’t lazy like Crain.

Not a single person where I work reviewed the book, but many outside people did. Crain mentions none of this. He falls back on the old bromide that if you work somewhere, you are simply a shill. And apparently he thinks I am a hurried shill at that, falsely claiming the work was rushed. It took, in fact, two years to write and went through dozens and dozens of rewrites in response to many peer reviews.

But that is just the beginning of Crain’s serendipitous association with facts and my arguments. He claims I think copyright laws have failed and that they have failed because there are conflicting interests. He then sagely advises me that conflicts aren’t a sign of failure. Hmm, in his hurried, slipshod review, he somehow missed this statement on page 11: “the conflicts discussed above are natural, and thus are not themselves signs of a failed system.” My discussion is about frequent statements that there aren’t conflicts. He must have missed that, too.

He missed a lot, really the whole book. He attacks me for devoting an entire chapter to a discussion of a 1995 article. What a waste of time! Except that the actual discussion, in Chapter 11, is about a metaphor from that article, “The Answer to the Machine Is in the Machine,” and about the use of the metaphor today in the European Union. Maybe the chapter was too long for him to get through, all thirteen pages of it.

Crain completely misstates my views on copies versus access. He accuses me of not thinking there are copyright implications for streaming. Really? There has been a public performance right in the United States since the nineteenth century. My point is the opposite of what Crain describes: my point is that we have to give increased attention to the copyright implications of streaming, given its increased importance. I guess that didn’t fit with Crain’s agenda though.

He claims he is going to quote liberally from my book when discussing fair use, and I wish he had. He quoted nothing I said about fair use, even though I devoted an entire chapter to it. He loves Peter Jaszi’s book, and I am glad. Peter is a wonderful scholar and writer. But my views are little different from Peter’s on fair use, and I have been involved in fair use for far longer and more practically. I have an entire treatise on the subject, and it has been in print since 1985. No mention of that, or that the book has been cited by many courts. Yet, Peter’s views are lauded, whereas mine… Well, can’t be too fair and balanced, I guess.

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I didn’t accuse William Patry of shilling. I accused him of sloppy logic: he can disavow representing Google in his book, but he can’t on that account forbid others from reporting that he, Google’s copyright lawyer, wrote what is in the book.

Patry does admit in his book that “conflicts…are not themselves signs of a failed system.” Three pages before that, though, he writes that “failure can be judged only in relation to purpose” and claims that he doesn’t believe copyright can accomplish all its objectives “at the same time, without conflict.” He continues: “Here’s why. There are conflicts between authors and the distributors to whom they sell their copyrights.” He then describes some of these conflicts in detail for several pages. So does Patry believe that conflict is evidence of copyright’s failure or not? He’s inconsistent, and in summarizing his argument, I went with his three-page accusation rather than his one-sentence qualification.

I wrote, “Patry doesn’t think that the ephemeral, infinitesimal duplications that make streaming possible qualify as copies.” I don’t think I misrepresented him here, either. He wrote that “to consider buffering or caching to be infringing ‘copies’ is using an eighteenth-century concept to defeat necessary twenty-first-century technologies.”

I stand by my impression that Chapter 11 of Patry’s book is a shaggy dog, as, indeed, I stand by all of my review.

CALEB CRAIN

Rainbow Rowell’s Welfare Essay

New York City

Rainbow Rowell’s essay printed in the Daily Nebraskan in 1994 and reproduced in the “Letters” column [Feb. 13] is the finest piece of short writing on the issue of rampant poverty and the government’s response to appear in The Nation in years. It is beautifully written—no words wasted—and movingly effective.

MICHAEL WRESZIN

Paris, Tex.

I want to write an essay for my local newspaper about how moved I was by Rainbow Rowell’s essay. Many in my small east Texas county rail against “welfare,” using all the stereotypes. I really didn’t recognize how deep my feelings were until I began reading Rowell’s essay aloud to my husband. My voice cracked and soon my eyes filled with tears, so much so that I could no longer see to read.

ANN NORMENT

Woodside, N.Y.

Rainbow Rowell’s description, courtesy of William J. Wayne’s letter, of the guilt she experienced as a welfare recipient is certainly poignant. While recently rereading Daniel Patrick Moynihan’s The Politics of a Guaranteed Income: The Nixon Administration and the Family Assistance Plan, published some forty years ago, I came across this passage: “The issue of welfare involves a stigmatized class of persons. The recipients know this…. the issue of welfare is not what it costs those who provide it, but what it costs those who receive it.” So little has changed.

JOHN J. COX

Corrections

Ari Berman, in “The GOP’s New Southern Strategy” [Feb. 20], stated that Democrats accounted for 47 percent of the statewide vote in Georgia in 2010; Democrats received 41 percent of the votes cast.

In the February 13 “Noted,” an attempt to fix a garbled sentence in Dave Zirin’s item on Muhammad Ali resulted in more garbling. The last sentence in the penultimate paragraph should have read, “Word of Ali’s courage even penetrated the extreme isolation of an island prison to reach a former boxer turned political prisoner named Nelson Mandela.”